Twenty-second Report of Session 2019–21 Contents

6Northern Ireland Protocol: continued application of EU firearms laws103

This EU document is politically important because:

  • it concerns an EU law—the Firearms Directive—which will continue to apply in Northern Ireland under the Protocol on Ireland/Northern Ireland when the post-exit transition period ends on 31 December 2020; and
  • it gives rise to questions about the Government’s policy on regulatory alignment or divergence in the laws applicable in different legal jurisdictions in the UK after transition.

Action

  • Write to the Minister for Security (Rt Hon. James Brokenshire MP) seeking further information on how the Firearms Directive will apply in Northern Ireland after transition, what steps the Government may wish to take to avoid unnecessary friction or divergence in the laws applicable in different parts of the UK, and what assessment the Government has made of any possible impact on the operational effectiveness of cross-border law enforcement on the island of Ireland.
  • Draw to the attention of the Northern Ireland Affairs Committee, the Home Affairs Committee, and the Committee on the Future Relationship with the European Union.

Overview

6.1This Commission Communication sets out the main elements of the EU Action Plan on Firearms Trafficking for the period 2020–25. The illicit trafficking, distribution and use of firearms increases the threat posed by organised crime and terrorism. The purpose of the Action Plan—which is not legally binding—is to establish a framework for cooperation between the EU and the main source countries for illicit weapons in the EU’s neighbourhood (the Western Balkans, Moldova and Ukraine) focussing on four priority areas:

6.2The Action Plan is of interest as it highlights the implementation of the EU Firearms Directive (and delegated and implementing acts made under it) as a key priority for the EU. The Firearms Directive forms part of the retained EU law which will continue to apply in the UK under the European Union (Withdrawal) Act 2018, but without any obligation to keep in step with changes to the Directive itself or to implement measures made under it after the post-exit transition period ends on 31 December 2020.105 By contrast, Northern Ireland will be required to implement the Directive, as well as any changes made to it or measures adopted under it after transition, because it is one of the EU laws listed in Annex 2 of the Protocol on Ireland/Northern Ireland (‘the Northern Ireland Protocol’). These laws, or subsequent EU laws amending or replacing them, will continue to apply in Northern Ireland after 31 December 2020. The Directive is included in the Northern Ireland Protocol because it is an (EU) internal market measure intended to regulate the movement of goods—in this case lawfully-owned firearms—within the EU while ensuring that adequate safeguards are in place across the EU.

6.3In its introductory comments to the Communication, the Commission observes that “Member States are notably still far from having fully transposed and implemented the Firearms Directive”.106 The UK is not one of the 17 Member States listed in the Communication as having notified full transposition of the Directive in national law. The Commission says it will “step up its commitment to ensure that the Firearms Directive and its corresponding delegated and implementing acts are correctly transposed and effectively enforced by all Member States” and that it will “keep on using all the powers given by the Treaty to that effect”.107 The Commission also says it will carry out an impact assessment on another EU law applicable in Northern Ireland under the Northern Ireland Protocol—a 2012 Regulation establishing controls on the import and export of civilian firearms—with a view to improving the traceability of firearms and the security of import and export control procedures.108

6.4Most of the remaining elements of the Action Plan, such as more systematic use of the Schengen Information System to log information on lost and stolen firearms, improved cooperation among national law enforcement authorities and prosecutors, and greater involvement of EU agencies such as Europol and Eurojust, are not within the scope of the Northern Ireland Protocol. Their policy implications for the UK will depend on the outcome of negotiations on the future relationship between the EU and the UK and any arrangements that are agreed on security cooperation after transition.

The Government’s position

6.5In his Explanatory Memorandum of 28 August 2020, the Minister for Security (Rt Hon. James Brokenshire MP) confirms that the Firearms Directive is one of the measures that will continue to apply in Northern Ireland after transition under the Northern Ireland Protocol, adding:

This means that any future EU legislative changes applied to Northern Ireland through the Protocol (including adding the Action Plan to the Directive) could affect how firearms are controlled in Northern Ireland.

6.6The Minister notes that the Action Plan “broadly aligns with the UK’s priorities and does not present any significant concerns”. As it will not apply to the UK, the Government does not expect it to have any direct policy implications.

Our analysis

6.7The EU Firearms Directive establishes a set of common minimum rules on the acquisition of firearms and their movement within the EU. Member States are free to exceed the rules by including more stringent provisions in their national laws. There is, as a result, no full harmonisation of national laws across the EU. Changes agreed in 2017 sought to strengthen the Directive’s safeguards by improving the tracking of legally held firearms (to reduce the risk that they are “diverted” into illegal markets), making it harder legally to acquire certain high capacity weapons, and improving the traceability of firearms as well as the systems for exchanging information between EU countries.

6.8The Directive allows individuals lawfully in possession of a firearm to obtain a European Firearms Pass to travel (with their firearm) to another EU country. Guidance issued by the Home Office on 30 October 2019 makes clear that the European Firearms Pass (“EFP”) will not be available when EU law ceases to apply to the UK at the end of the transition period, stating:

UK residents who want to travel to the EU with their firearms or shotguns will no longer be able to apply for a European Firearms Pass (EFP) from 1 January 2021.

Instead, you should check the firearms licensing requirements of the EU country you’re travelling to, ahead of travelling. These requirements will also apply if you will be in an EU country with your firearm, covered by a EFP, when we leave the EU.109

6.9There is no separate Guidance for Northern Ireland, even though the Firearms Directive will continue to apply after 21 January 2021. In his Explanatory Memorandum on the Communication, the Minister notes that firearms, “subject to some exceptions”, are a devolved matter in Northern Ireland. The relevant legislation implementing the Directive in Northern Ireland is The Firearms (Northern Ireland) Order 2004. Amendments made to the Firearms (Northern Ireland) Order 2004 by the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 remove those parts of the Order which concern the European Firearms Pass. It seems, therefore, that new export control and licensing arrangements will apply when taking personal firearms from any part of the UK to an EU country, including from Northern Ireland to the Republic of Ireland, from 1 January 2021.

Action

6.10Noting the importance placed on the correct transposition and effective enforcement of the EU Firearms Directive in the EU Action Plan on Firearms Trafficking for 2020–25, we seek further information from the Minister on the following matters:

Letter to the Minister for Security (Rt Hon. James Brokenshire MP), Home Office

We have considered the Commission Communication establishing an EU Action Plan on Firearms Trafficking for the period 2020–25 and your accompanying Explanatory Memorandum of 28 August 2020.

Noting the priority attached to the correct transposition and effective enforcement of the EU Firearms Directive in the EU Action Plan, the possibility of enforcement action by the European Commission to address any shortcomings, and the fact that the Directive will continue to apply in Northern Ireland after the transition period ends on 31 January 2020, we would welcome further information on the following matters.

UK implementation of the EU Firearms Directive

The Commission observes that “Member States are notably still far from having fully transposed and implemented the Firearms Directive” and says it will “step up its commitment to ensure that the Firearms Directive and its corresponding delegated and implementing acts are correctly transposed and effectively enforced by all Member States […] using all the powers given by the Treaty to that effect”.110 Are you satisfied that UK domestic law complies fully with the Directive?

Alignment of law across the UK

The Firearms Directive forms part of the retained EU law which will continue to apply in the UK under the European Union (Withdrawal) Act 2018, but without any obligation to keep in step with changes to the Directive itself or to give effect to measures made under it after the post-exit transition period ends on 31 December 2020. By contrast, Northern Ireland will be required to implement the Directive, as well as any changes made to it or measures adopted under it after transition, because it is one of the EU laws listed in Annex 2 of the Protocol on Ireland/Northern Ireland (“the Northern Ireland Protocol”). These laws, or subsequent EU laws amending or replacing them, will continue to apply in Northern Ireland after 31 December 2020.

We recognise that there is no full regulatory alignment within the EU as the Directive establishes a set of common minimum rules, leaving Member States free to exceed them by including more stringent provisions in their national laws should they choose to do so. Would we be right to assume that the Government will nonetheless wish to maintain close alignment of laws on legally owned firearms within the UK? Does this mean that domestic firearms laws in the UK will remain in lockstep with the Directive (and changes made to it) after transition to avoid any unnecessary friction or divergence in the laws applicable in different parts of the UK?

Availability of the European Firearms Pass

The Directive allows individuals lawfully in possession of a firearm to obtain a European Firearms Pass to travel (with their firearm) to another EU country. Guidance issued by the Home Office on 30 October 2019 makes clear that the European Firearms Pass will not be available when EU law ceases to apply to the UK at the end of the transition period. The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 remove those parts of the law in Northern Ireland (The Firearms (Northern Ireland) Order 2004) which refer to the European Firearms Pass. Can you confirm that Northern Ireland residents will not be able to request a European Firearms Pass after transition and that new export control and licensing arrangements will apply when taking a lawfully owned firearm to an EU country, including the Republic of Ireland, from 1 January 2021? Will the arrangements in Northern Ireland be the same as in the rest of the UK?

Information sharing

Recent changes to the EU Firearms Directive have sought to improve systems for exchanging information between EU countries. Will Northern Ireland continue to participate in these information exchange systems after transition and, if not, what assessment has the Government made of the possible impact on the operational effectiveness of cross-border law enforcement on the island of Ireland?

I look forward to receiving your response within ten working days.


103 Commission Communication: 2020–2025 EU action plan on firearms trafficking; Council number 10035/20 + ADD 1, COM(20) 608; Legal base:—; Devolved Administrations consulted; ESC number 41428.

104 Directive (EU) 2017/853 amending Council Directive 91/447/EEC on control of the acquisition and possession of weapons.

105 Two sets of changes have been made to the Directive since its adoption in 1991—see Directive 2008/51/EC and Directive 2017/853/EC. Changes resulting from the UK’s exit from the EU have been made by the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 and will take effect at the end of transition.

106 See p.4 of the Communication.

107 See p.8 of the Communication.

108 See Regulation (EU) No 258/2012 implementing Article 10 of the United Nations’ Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, supplementing the United Nations Convention against Transnational Organised Crime (UN Firearms Protocol), and establishing export authorisation, and import and transit measures for firearms, their parts and components and ammunition.

109 The UK left the EU on 31 January 2020, but EU law continues to apply under the EU/UK Withdrawal Agreement during a post-exit transition period which will end on 31 December 2020.

110 See p.4 of the Communication.




Published: 30 September 2020